View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Case Western Reserve University School of Law Case Western Reserve Journal of International Law Volume 43 | Issue 1 2010 The aD ngers of Lawfare Scott orH ton Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Scott orH ton, The Dangers of Lawfare, 43 Case W. Res. J. Int'l L. 163 (2010) Available at: https://scholarlycommons.law.case.edu/jil/vol43/iss1/10 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. File: Horton 2 Created on: 12/27/2010 5:09:00 PM Last Printed: 4/5/2011 8:08:00 PM THE DANGERS OF LAWFARE Scott Horton* I. INTRODUCTION ........................................................................................ 164 II. A PERPLEXING NEOLOGISM ................................................................... 169 A. Lawfare at Guantánamo ............................................................... 171 B. Pakistan’s Lawfare Coup ............................................................. 175 C. The Netanyahu Initiative ............................................................... 177 III. CONCLUSION ........................................................................................ 179 Édouard Manet, The Battle of the Kearsage and the Alabama, 1864. * Scott Horton is a Contributing Editor of Harper‘s Magazine and writes No Comment for the Harper‘s website. A New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict, Horton lectures at Columbia Law School. The follow are remarks presented by Scott Horton for the Lawfare! Symposium held on September 10, 2010 at Case Western Reserve University School of Law in Cleveland, Ohio. 163 File: Horton 2 Created on: 12/27/2010 5:09:00 PM Last Printed: 4/5/2011 8:08:00 PM 164 CASE W. RES. J. INT‘L L. [Vol. 43:163 I. INTRODUCTION This painting by Édouard Manet captures an important engagement of the American Civil War—a sea battle between the U.S.S. Kearsage and the C.S.S. raider Alabama, fought on June 19, 1864, off the coast of Cher- bourg, France.1 The Alabama had, over the objections of the United States, been constructed secretly by an English firm in Merseyside and turned over to a Confederate crew.2 For several years, it had preyed on American ship- ping—clear evidence of Britain‘s covert support for the Confederacy during the War, at least in the minds of many Americans.3 Eliminating this threat was a priority for the U.S. Navy, and when Americans learned that the Ala- bama had put to port at Cherbourg, the Kearsage blockaded it in the harbor.4 At length, the Alabama tried to fight its way out.5 But it was no match for the Kearsage, which won the engagement.6 The Alabama was sunk, and several days later, while the Kearsage was docked at Boulogne-sur-Mer, Manet visited it and began studies for his painting.7 This is one of two politically themed paintings by Manet in this pe- riod. The other, of course, is the ―Execution of the Emperor Maximilian‖ from 1867–68, which can be found in the Boston Museum of Fine Arts.8 We know a bit of Manet‘s political sympathies at the time from his corres- pondence and from the recollections of his friends: he was a republican.9 He detested the fact that under the Emperor Napoléon III, who had betrayed the republican cause, France had sought to undermine the nascent democra- cies of the Americas by toppling the republic in Mexico to install the Empe- ror Maximilian.10 Further, France had covertly supported the Confederacy in the hopes that the United States, then the world‘s democratic beacon, 1 See Christopher M. Henze, The Saga of CSS Alabama, 37 ALA. HERITAGE 6 (1995) (discussing the accomplishments and the ultimate demise of the CSS Alabama). 2 FRANK J. MERLI, THE ALABAMA, BRITISH NEUTRALITY, AND THE AMERICAN CIVIL WAR, 46–47 (David M. Fahey ed., 2004) (presenting the Confederacy‘s use of British shipbuilders based in Merseyside, England to construct a variety of cruisers for use against the Union). 3 Id. at 46. 4 See Henze, supra note 1, at 96 (explaining that the Union‘s ―man-of-war Kearsarge‖ had been hunting the Alabama for many months and once word arrived that the Alabama had anchored in Cherbourg, the Kearsarge rushed to confront it). 5 Id. at 97–99 (presenting a description and an account of the deadly battle that ensued between the Kearsarge and the Alabama). 6 Id. at 99. 7 Id.; MARK WESTON JANIS, THE AMERICAN TRADITION OF INTERNATIONAL LAW: GREAT EXPECTATIONS, 1789–1914 at vi (2004). 8 JOHN ELDERFIELD, MANET AND THE EXECUTION OF MAXIMILIAN 60–61fig. 21 (2006). 9 Id. at 29–30. 10 Id. at 37. File: Horton 2 Created on: 12/27/2010 5:09:00 PM Last Printed: 4/5/2011 8:08:00 PM 2010] THE DANGERS OF LAWFARE 165 would be destroyed.11Although Manet is a realist in the strict sense, his choice of subject sends a clear message. He was celebrating the victory of the United States over the forces of slavery in one painting, just as he took pleasure in marking the final ignominious failure of Napoléon III‘s Mexican escapade in the other.12 But what does this wonderful painting have to do with the subject of lawfare? Its relevance is suggested by Mark Janis, who used it as the cover art for his recent magnificent book on the history of the U.S. engage- ment with international law.13 The sinking of the Alabama and the final triumph of the Union over the Confederacy did not end the Union‘s griev- ances about the losses America suffered from the British-built rebel raider ships, Janis reminds us.14 At the end of the Civil War, America tallied its losses from British support for the Confederacy. Charles Sumner, then the chair of the Senate Foreign Relations Committee, demanded that Britain pay two billion dollars in damages—half the total cost to the Union of the war effort—or cede all of the newly formed Dominion of Canada to the United States.15 Major American newspapers, led by Horace Greeley‘s New York Tribune, beat the drums for war against Britain. They pointed out that America then possessed the largest and most experienced standing army in the world, and that British North America was defended by only a handful of soldiers. It would be child‘s play for the Americans to simply sweep across the Great Lakes and add Canada to the United States—fulfilling a plan which, in a forgotten chapter of American history, George Washington himself had endorsed in 1775. These plans did not get very far, however. The day was captured by other, more level-headed voices: a collec- tion of lawyers, academics, and religious leaders who became known first as the American arbitration movement and then as the international law movement.16 The American claims relating to the Alabama went to an arbi- 11 See Gordon Wright, Economic Conditions in the Confederacy as Seen by the French Consuls, 7 J.S. HIST. 195, 198 (1941) (presenting the important consular presence in the South and those consuls‘ support for the Confederacy). 12 See ELDERFIELD, supra note 8, at 55–70 (presenting Manet‘s work celebrating the battle between the Union ship, Kearsarge, and the Confederate ship, Alabama, which preceded Manet‘s subsequent interest in Napoleon‘s quest in Mexico which led to his work, the Ex- ecution of the Emperor Maximilian). 13 See JANIS, supra note 7. 14 Id. at 36. 15 4 ENCYCLOPEDIA OF THE AMERICAN CIVIL WAR: A POLITICAL, SOCIAL, AND MILITARY HISTORY 1902-1903 (David S. Heidler & Jeanne T Heidler eds., 2000); Willis Fletcher John- son, Russia’s Fifty-Billion Bill and the Story of America’s Claim for “Indirect Damages” Fifty Years Ago, 131 OUTLOOK 20, 21 (1922). 16 JANIS, supra note 7, at 138 (explaining that the International Code Committee led to the establishment of the Association for the Reform and Codification of the Law of Nations, which is now known as the International Law Association); INT‘L LAW ASS‘N, REPORTS OF THE FIRST CONFERENCE HELD AT BRUSSELS, 1873, AND OF THE SECOND CONFERENCE HELD AT File: Horton 2 Created on: 12/27/2010 5:09:00 PM Last Printed: 4/5/2011 8:08:00 PM 166 CASE W. RES. J. INT‘L L. [Vol. 43:163 tration tribunal, as Harper’s reported in its November 1872 edition, which ultimately ruled for America.17 Britain paid a damage award of $15.5 mil- lion, a sum unprecedented up to that time (roughly $1.25 billion in current dollars).18 This was a decisive step in America‘s history on the world stage. First, Britain in short order ceased to be viewed as America‘s hereditary enemy—in the decades to come it would be viewed as an increasingly close ally.19 Second, in the fifty years following the arbitration, American admin- istrations of both parties, but principally Republicans, took the lead globally in advocating arbitration as a means of resolving differences between na- tions, including resolving private claims.20 They also led the way in the formation of the International Law Association in Brussels in 1873, and the Hague Conferences, which codified the law of nations, and particularly the law of armed conflict.21 In 1913, the Judge Advocate General of the Army presented a brief- ing to the American Society of International Law together with posters and indices.22 He demonstrated that the American concept of the laws of war, as originally laid down by President Lincoln, had been converted into accepted international legal norms through effective American diplomacy pursued at The Hague and in major capitals around the world.23 President Theodore Roosevelt received a Nobel Peace Prize for his critical role in brokering the peace between Russia and Japan following their 1904–05 war.24 This is a proud legacy of American foreign policy, a legacy forged over half a cen- GENEVA, 1874 at iv (1903) (explaining that the Association emanated from America at the hand of a diverse group of individuals).